Some Thoughts on Appellate Advocacy
J. Harold Flannery*
I have been a judge of the Massachusetts Appeals Court for only about one year; therefore, it may be premature (if not presumptuous) of me to give advice about appellate advocacy. However, gentle reader, before you decide to wait for the new and improved second edition, let me bolster the credibility of the witness by saying that the following thoughts are also the product of some years of appellate practice and more than a decade as a Massachusetts Superior Court Justice. Many of the advocacy suggestions that I shall offer apply similarly, if not identically, to the trial phase of litigation. In any event, provided that you read this piece "with all due respect," as lawyers often say when they are about to be mildly offensive, you will not be quizzed on the suggestions herein, and you may disregard them without immediate penalty.
Preliminarily, too many meritless appeals are taken.(1) On the criminal side, this fact is understandable and perhaps appropriate. A person's liberty is usually at stake, the appeal is free to the inmate in most cases, and lightning may strike.(2) Also, unfortunately, the lawyer may feel it necessary to appeal the conviction in order to ward off later charges of ineffective assistance of counsel.
The phenomenon is also present on the civil side, and there it is less defensible. Putting aside the (few, one hopes) cases that are appealed in order to continue the lawyers' fees or to gain settlement leverage, there remain too many pointless appeals. Believe me when I say from experience that occasionally something just and well precedented takes place in our trial courts.(3)
Of course, many losing appeals have some merit; if there were not two sides, there would be no question to address in the first place. I do not urge that only "clearly erroneous" cases should be appealed, but too many appeals seem to be the product of excessive zeal and faulty analysis on the part of the client, the lawyer, or both. I acknowledge that some clients' motives are singular: They are looking for gladiators "pure and simple," and some lawyers are willing to be robotic hired guns.(4) However, it should not be too idealistic to urge that the lawyer's first role is that of a knowledgeable and dispassionate counsellor. If that important dimension of the engagement leads to advice against an appeal that is practically certain to be unsuccessful, the client is well served. The client whose lawyer becomes head cheerleader should get a second opinion.
Your appeal is meritorious, however, so I turn to some suggestions about prosecuting it effectively. First, you must know and abide by the Rules of Appellate Procedure. This requirement is more than a professional nicety. Noncompliance may cause your filing to be "struck from the files."(5) Moreover, even if the reviewing court overlooks your noncompliance, it has a negative effect on your appellate position. The court begins to doubt you as advocate, and that loss of credibility harms your cause. If you are in doubt about some procedural aspect of your appeal, consult the court clerk's office; its personnel are user-friendly and practically omniscient.
Second, your appellate brief is the court's introduction to your cause. If you are not painstaking with that product, you have lost a valuable opportunity, perhaps irretrievably. Some lawyers write better than others, to be sure, but all writers can be clear, concise, and focussed; these qualities are all that are required. Emphasize the facts of your case; put differently, persuade the court that in fairness and good sense, your client should prevail. The judges either know the law or they and their clerks can find it; if need be, they can create it. But putting the facts of the case in their best light is your responsibility, and the judge who wants to rule for your client is a better ally than disembodied precedent.
Between the filing of your brief and the time of your argument, particularly on the civil side, many appellate decisions will be issued. You should bring any pertinent ones to the attention of the court via Massachusetts Rule of Appellate Procedure 16(l). The lawyer who is unaware of a recent relevant case (or statute or regulation) risks a loss of credibility.
Third, in the Massachusetts Appeals Court, you should assume that the judges on the panel and their law clerks have read your briefs and quite often all or parts of the record appendix.(6) Therefore, you should not use your limited argument time to restate the facts of the case. As in your brief, your clear and concise argument should first persuade the judges that your client should prevail, and then it should show them how to reach that result. The appellant must identify the error or errors committed below, and establish that it was or they were harmful, and the appellee contra. The heart of the matter, however, is convincing the court that in justice, your client ought to win. If the court sees your client's cause as legally supported but not right, you are in trouble.
You may prepare a seamless and compelling fifteen-minute argument, but, especially in the Appeals Court, be prepared for an exercise that is more in the nature of a discussion of your case. Remember that the judges know your argument or arguments from your brief, so be ready to respond clearly and forthrightly to their questions, or to what may be their "devil's advocacy." If their analysis coincides with yours, fine. If their analysis differs, however, try to address it rather than clinging stubbornly to your own.
Fourth, some counsel make multiple arguments on a point, including some that they think are flawed. The usual explanation is that the argument is worth making if there is an outside chance that it may "pick up" an undecided judicial vote. This tactic is generally inadvisable, I believe, because it may dilute a stronger argument. Also, it risks suggesting to the court that the lawyer cannot be relied on to know wheat from chaff. Perhaps the client insists that the argument be made, or the point is marginal but not worthless. In that event, skeptical questions from the bench may be avoided by including it in the brief but not arguing it.
Fifth, know the record. One of my colleagues, who is generally soft-spoken, had occasion to make the following observation during a recent argument: "Counsel, when the court knows the record better than the lawyers do, something is wrong." The advocate who is in command of the record inspires confidence in his or her cause.
Finally, an appellate argument is not the same as a jury trial, but neither are we back in the classroom. The task is not matching swatches; it is persuading men and women whose training and orientation are similar to your own. Holmes once said: "Life is painting a picture, not doing a sum."(7) So is appellate advocacy.
* J. Harold Flannery is an Associate Justice of the Massachusetts Appeals Court. Prior to his current appointment, Justice Flannery served the Commonwealth for more than ten years as a Massachusetts Superior Court Justice. He began his legal career in 1958 as a trial attorney for the Civil Rights Division of the United States Department of Justice where he later became a Deputy Section Chief and then a Section Chief. Justice Flannery has also held positions at the Center for Law and Education in Cambridge, Massachusetts, and the Lawyers Committee for Civil Rights Under Law in Washington, D.C. Prior to his appointment as a Justice of the Superior Court in 1984, Justice Flannery was an associate and then a partner at Foley, Hoag & Eliot in Boston, Massachusetts.
1. The number of appeals has increased sharply in recent years. For example, the appeals entered in fiscal year 1995 (2,095) were an increase of 40% over the entries in 1992 (1,497). These numbers do not include each year's single justice matters--approximately one thousand. One effect of that volume is that almost 80% of my court's decisions are by summary memorandum (see Massachusetts Appeals Court Rule 1:28), with just over 20% by published opinion.
2. To say that groundless criminal appeals are not burdensome because their lack of merit is obvious at a glance, is incorrect. Most judges go painstakingly through the haystack looking for the needle. After all, the next appellant may be Clarence Earl Gideon.
3. If you choose not to accept that assertion without proof, then consider that the affirmance rate of civil final judgments in the Massachusetts Appeals Court was more than 77% in fiscal year 1995.
4. Such litigants and their lawyers may resemble well-meaning clients whose claims should, for good reason, not be pursued. But the resemblance is superficial, and the "take no prisoners" approach should be addressed, I believe, by creative uses of Civil Rules 11 and 68 and fee-shifting mechanisms. I am trying herein to address appellants and counsel who are willing to consider an appeal to reason, fairness, and professionalism.
5. Mass. R. App. P. 16(K); see also Shawmut Community Bank, NA v. Zagami, 411 Mass. 807, 810-12, 586 N.E.2d 962, 964-65 (1992).
6. Of course, I do not presume to speak for the Supreme Judicial Court; however, I believe that the advocacy suggestions herein apply, perhaps with minor variations, to all tribunals.
7. Oliver Wendell Holmes, Address to the Fiftieth Anniversary of the Harvard Graduating Class of 1861 (June 28, 1911), in The Occasional Speeches of Justice Oliver Wendell Holmes 160, 161 (Mark D. Howe ed., 1962)